FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE CARMEN GOMEZ FERNANDEZ, No. 19-70079 AKA Jobe Carmen Gomez, AKA Jose Carmen Gomez, AKA Jose Agency No. Gomez Carmen, A070-640-213 Petitioner, v. OPINION WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 11, 2020 San Francisco, California Filed August 13, 2020 Before: MILAN D. SMITH, JR. and ANDREW D. HURWITZ, Circuit Judges, and DAVID A. EZRA, * District Judge. Opinion by Judge Milan D. Smith Jr. * The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. 2 GOMEZ FERNANDEZ V. BARR SUMMARY ** Immigration Denying Jose Gomez Fernandez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) a murder conviction under California Penal Code § 187(a) is broader than the generic definition of murder in the aggravated felony provision of the Immigration and Nationality Act because the California statute includes the killing of a fetus; 2) § 187(a) is nonetheless divisible; 3) under the modified categorical approach, Gomez’s § 187(a) conviction is an aggravated felony; and 4) substantial evidence supported the denial of deferral of removal under the Convention Against Torture (CAT). Gomez, a native and citizen of Mexico, became a lawful permanent resident, but was later ordered removed on the ground that his conviction for second degree murder in violation of § 187(a) is an aggravated felony. Employing the categorical approach, the panel first compared § 187(a) to the generic offense of “murder” used in the relevant aggravated felony provision, 8 U.S.C. § 1101(a)(43)(A). Although Congress did not define “murder” in that provision, the panel noted that the parties agreed that the foundation for ascertaining the federal generic definition was the federal murder statute, 18 U.S.C. § 1111, which provides in relevant part that murder is the “unlawful killing of a human being with malice ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GOMEZ FERNANDEZ V. BARR 3 aforethought.” Further, the panel explained that Congress has defined the term “human being,” in 1 U.S.C. § 8(a), for purposes of determining the meaning of any Act of Congress, to “include every infant member of the species homo sapiens who is born alive at any stage of development.” Looking, in turn, to the definition of “born alive” in 1 U.S.C. § 8(b), the panel concluded that the term “human being” does not include a fetus. Thus, the panel held that the federal generic definition of murder excludes the killing of an unborn fetus. The panel rejected the Government’s reliance on 18 U.S.C. § 1841, the federal unborn child protection statute, to reason that the federal generic definition of murder includes the killing of an unborn fetus. Considering § 1841’s plain language, purpose, and structure, the panel agreed with the Eighth Circuit that ...
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